How to make your Québec Last Will and Testament a legal document
- Posted By : Tim Hewson
- 1 Comment
We receive so many questions on this same topic, so we wanted to provide some clarification on this very important matter.
Types of Québec Will
Three types of Will are recognized under Québec law:
1) Notarial Will
Many people have the misconception that this is the only type of Will available in Québec.
Our most commonly asked questions are all related to the need to have a Will signed by a notary
in order to make it a legal document. But this is just one way to prepare a legal Will in Québec.
It is certainly not the only way.
A Notarial Will is made before a notary and at least one witness. This type of will is governed by strict formal requirements executed before a notary acting in his or her capacity as a public officer. In other words, the Notary has been granted particular powers under the Provincial legal system, and specifically they have been granted the powers to take an oath. This means that a Notary can ask you to swear under oath in the same way as a courtroom, and when you swear under oath in the presence of a Notary, they can then attach a seal to the document to establish its validity.
By having the signing procedure conducted under oath, the Will bypasses many of the formalities of probate. So we need to explain a little about probate before proceeding.
Probate is the process by which your Will is established as being your legal Last Will and Testament. Your liquidator (Executor) presents your Will to the probate courts, and the courts have to establish that there are no other documents being presented as your Will, and that this document was signed by the testator, and there was nothing untoward happening during the signing process.
There may be a requirement to call upon the witnesses to the signing to swear under oath that the signing was conducted appropriately; there was no undue influence and the testator had the mental capacity to know that they were signing their Will.
A Notarial Will takes these steps proactively. The Wills are usually of a good quality, and usually difficult to challenge. Particularly as most challenges are made on the basis of undue influence or diminished capacity (somebody really has no idea that they were signing their Will). Clearly if the document was signed in the presence of a Notary and the witness swears under oath that they witnessed the signing of the Will, the grounds for a successful challenge to the Will are limited.
There is of course a downside. Notarial Wills can be expensive. They can also be inconvenient, as you are required to arrange an appointment with a Notary.
It is also more difficult to keep updated when changes are required which is probably more often than you think. You not only need to make an update to your Will to reflect any changes in your situation, but also any changes in the circumstances of anybody named in the Will. Maybe your liquidator is no longer an appropriate choice, in which case you need to update your Will.
The inconvenience and expense of updating a Will often leads people to make do with Wills that no longer reflect their situation or their wishes.
2) Holographic Will
Everybody has a legal right to prepare his or her own Will. In theory, if you were pinned by a rock but had a pen and paper in hand, you could write your own Last Will and Testament and it would be accepted by the courts.
There are famous examples in Canada of exactly this situation. Like Cecil George Harris in 1948, who scratched his Will on the side of his tractor while he was pinned beneath it. Although this happened in Saskatchewan, any Province would have accepted this Will, including Québec.
A holographic Will is handwritten entirely by the testator and signed by them, with no other formal requirements. However, the Will must be extremely clear and unambiguous, and the interpretation of the instructions in the Will are made by a judge during the probate of the Will. This type of Will typically costs nothing, but they frequently contain errors or omit critical clauses.
It is actually the most difficult Will to write. Even an estate planning lawyer or notary with years of experience would struggle to prepare a Last Will and Testament starting with a blank piece of paper. A well written Will incorporates established legal clauses, known as legal precedents. Most Wills are a pulling together of these legal precedents that cover not only the distribution of the legacy, but also the powers being granted to the liquidator.
It is almost impossible for somebody to write a well drafted Last Will and Testament starting with a blank piece of paper. A holographic Will should only be used in the most extreme circumstances.
3) Will Made in the Presence of Witnesses
A convenient and affordable middle ground which gives you the affordability of a do-it-yourself Will, with the quality of a notarial Will is a Will made using a kit. This is then signed in the presence of two witnesses to make it a legal document.
Sometimes called a “Will following the form derived from the laws of England”. The “Will made in the presence of witnesses” must be signed by the testator before a minimum of two witnesses of full legal age, who must also sign the will. It is not required that the will be written by the testator; it can be drafted by another person. To be legally valid the testator must declare in the presence of the witnesses that the document effectively constitutes his or her will.
In other words, the document can be typed up by somebody else, it can be created using a kit like the Québec legal Will kit, or generated using software. The key is that it is then signed by the testator, who has read it and understood it.
The testator gathers together two witnesses. These can be any two adults; friends, neighbours, co-workers, anybody who is not a beneficiary in the Will and has nothing to gain from the contents of the Will. Usually the spouse of a beneficiary is also a poor choice of witness.
Once the testator has signed, and the two witnesses have signed, then the document is a fully legal Last Will and Testament in the Province of Québec.
This kit will allow you to create this type of Will: a “Will made in the presence of witnesses”.
You can download this kit, and fill in the blanks. Next time you have a couple of friends over for dinner, tell them that you are signing your Will, and that you would like them to sign as witnesses. The witnesses can be related to each other, this is not an issue.
The witnesses are not required to read the document, or check the contents. They are simply signing to say that they saw you sign the document, you were not being placed under any undue influence, and that you knew that you were signing your own Will.
Using this method, you can have a legal Last Will and Testament in your hands in less than an hour.